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[2016] ZALCCT 47
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College of Cape Town v GPSSBC and Others (C787/15) [2016] ZALCCT 47 (2 December 2016)
REPUBLIC
OF SOUTH AFRI
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Not
reportable
Of
interest to other judges
Case
no: C 787/15
In
the matter between:
THE COLLEGE OF
CAPE TOWN
Applicant
And
GPSSBC
First respondent
JACQUES
BUITENDAG N.O.
ELROY FEBRUARY
MANDY DARIES
GARTH HOSKING
WILHELMINA
FREDERICKS
RUTH VALENTINE
JACQUELINE
SAMUELS
JAMERA CARELSE
(DARIES)
CARMEN WILLIAMS
FAAIQA BADEROEN
(HOLLAND)
NTOMBI TOFILE
SONIA DE BRUYN
Second
respondent
Third respondent
Fourth respondent
Fifth respondent
Sixth respondent
Seventh respondent
Eighth respondent
Ninth respondent
Tenth respondent
Eleventh respondent
Twelfth respondent
Thirteenth
respondent
Heard
:
27 October 2016
Delivered:
2 December 2016
SUMMARY:
Review – LRA s 158(1)(g) –
interpretation of collective agreement.
JUDGMENT
STEENKAMP
J
Introduction
[1]
This application for review turns on the
interpretation of a collective agreement.
[2]
The applicant is the College of Cape Town,
a public further education and training (FET) college. The third to
thirteenth respondents
are its employees. They are support staff
employed as administrative clerks (production level clerks).
[3]
The
dispute arises from a collective agreement providing for payment
parity between employees transferred from the State and those
previously employed by FET colleges. A trade union, the PSA, referred
a dispute on behalf of the eleven employees party to this
dispute to
the first respondent, the General Public Service Sectoral Bargaining
Council. The second respondent, Jacques Buitendag,
is a panellist of
the Bargaining Council. Conciliation having failed, he was tasked
with interpreting the collective agreement
in an arbitration. He
found that the College was in breach of the collective agreement; and
that it had to ‘translate’
the employees to the minimum
notch of salary level 5 with effect from April 2010. The College
applies to have that award reviewed
and set aside in terms of ss
158(1)(g) and 145(2) of the LRA.
[1]
Background
facts
[4]
The dispute that the PSA referred to the
Bargaining Council concerns the interpretation of a collective
agreement in the public
service known as Resolution 1 of 2010.
[5]
The
agreement was signed on 10 February 2011 and implemented with effect
from 1 April 2010.
[2]
The PSA is
party to the collective agreement. It is entitled: ‘Establishing
parity in salaries of support staff employed
in Public Further
Education and Training Colleges’. Its stated aim is set out in
the agreement. Certain support staff previously
employed by the State
were transferred to FET colleges in 2008, retaining their existing
salaries and conditions of service. In
some cases these were better
than their counterparts’ who had been employed by colleges from
the start. The purpose of the
agreement is ‘to establish parity
in salaries for support staff historically employed by Public Further
Education and Training
Colleges with those employees who were
transferred from the State to Public Colleges”.
[6]
The employees who are the claimants in this
dispute were not transferred from the State. They were employed by
the College on salary
level 3. In November 2009 the College informed
them that their salaries would be revised to level 4.
[7]
In 2010 the Western Cape Education
Department issued a minute titled ‘Internal Human Capital
Management Minute 0003/2010’.
The WCED minute provided for the
salary level of clerks in certain posts to be upgraded to salary
level 5 with effect from 1 April
2010 but backdated to 1 October
2009.
[8]
The College understood the WCED minute to
apply to three clerks who had been employed by the State and
transferred to the College.
It upgraded those three clerks to level
5.
[9]
The claimants referred a dispute about the
interpretation and implementation of the collective agreement to the
Bargaining Council.
They contended that they had been employed on
level 4; the three clerks transferred from the State had been
upgraded to level 5;
and this disparity was not permitted by the
collective agreement.
Arbitration
award
[10]
The arbitrator upheld the claimants’
contention. He concluded:
‘
Having
translated the applicants’ salary from level 3 to level 4 in
2009 did not create salary parity with the three clerks
who were
transferred to the [College] from the State because those clerks were
placed on salary level 5 with effect from 1 April
2010. To give
effect to the purpose of Resolution 1 of 2010 i.e. to
establish
salary parity
, the applicable salary
range to which … the applicants had to be translated to [
sic
]
with effect from 1 April 2010 should have been salary level 5 and not
salary level 4.
I
accordingly find that the [College] is in breach of Resolution 1 of
2010. To comply with Resolution 1 of 2010 the [College] must
translate the applicants to the minimum annual basic notch of salary
level 5 as set out in Annexure A of Resolution 1 of 2010 with
effect
from 1 April 2010. The applicants are also entitled to pay
progression and to back pay with effect from 1 April 2010.’
[11]
The award was handed down on 16 July 2015.
The College lodged an application for review within the prescribed
time periods.
Grounds
of review
[12]
Mr
Quixley
,
for the College, submitted that:
12.1
the arbitrator impermissibly applied the
purpose
of
the collective agreement without applying the actual
operative
provisions
of the agreement itself;
12.2
he incorrectly interpreted and applied the
agreement; and
12.3
in so doing, he misconceived the nature of
the enquiry and arrived at an unreasonable result.
Evaluation
[13]
Messrs
Quixley
and
Philander
agreed
that the applicable review test is that set out in
Sidumo
[3]
,
i.e. that the conclusion was one that a reasonable arbitrator could
not reach on the evidence before him. The test has been developed,
as
Mr
Quixley
correctly submitted, to ask whether the arbitrator misconceived the
nature of the enquiry or arrived at an unreasonable result.
[4]
And an error of law will vitiate a decision where the error results
in the arbitrator undertaking the wrong enquiry, undertaking
it in
the wrong manner or arriving at an unreasonable result.
[5]
[14]
The
arbitrator correctly summarised the purpose of the collective
enquiry. He correctly identified the nature of the dispute, i.e.
the
interpretation and application of the agreement. And he had regard to
the legal principles pertaining to interpretation, such
as
Natal
Joint Municipal Pension Fund
[6]
and
Securefin.
[7]
[15]
Having
done that, though, the arbitrator did not consider and apply the
actual operative provisions of the collective agreement
itself. As
the SCA stated in
Natal
Joint Municipal Pension Fund
[8]
:
‘
The
inevitable point of departure is the language of the provision
itself, read in context and having regard to the purpose of the
provision and the background to the preparation and production of the
document. ‘
[16]
The arbitrator did not properly consider
the language of the agreement itself. The agreement does not require
salaries of support
staff that were transferred from the state to be
identical to those who had previously been employed by FET colleges.
The claimants’
salaries had already been upgraded from level 3
to level 4.
[17]
The agreement provides that the salaries of
support staff who were historically employed by colleges must be
“translated to
the minimum annual basic notch of the applicable
salary range”. The agreement applies to and binds all support
staff whose
salaries were not congruent with the salary structure of
the Public Service Regulations. The salaries of the claimants were
congruent
with the salary structure in the Public Service
Regulations. Yet the arbitrator did not consider that factor in
deciding whether
a further adjustment was called for.
[18]
The agreement also provides for the
existing salary scales in the public service to be applied to all
support staff in public FET
colleges. That is another factor that the
arbitrator did not consider. And the agreement provides that existing
support staff like
the applicants whose salaries are congruent with
the existing public service salary scales would retain their notch.
But the arbitrator
did not properly consider whether the College had
complied with those provisions.
[19]
It is not for this court to decide whether
the College had complied with the agreement. The main argument on
review raised by Mr
Quixley
is that the arbitrator simply disregarded the operative provisions of
the collective agreement and focused instead on the sole
question of
parity. He did not embark on any analysis to ascertain whether the
College had indeed complied with the agreement in
respect of these
complainants and in respect of the three transferred employees. I
agree that that is a reviewable irregularity;
but the interpretation
and application of collective agreements is the province of the
Bargaining Council. Another arbitrator will
be best placed to
properly interpret the operative provisions of the agreement and to
consider whether the college had applied
those provisions properly.
Conclusion
[20]
The arbitrator misconceived the nature of
the enquiry before him by failing to determine whether the College
had complied with the
operative provisions of the collective
agreement. That is a reviewable irregularity. The dispute must be
remitted to the Bargaining
Council for another arbitrator to properly
consider those provisions.
[21]
With regard to costs, I take into account
that the dispute has not been finally determined; and that there is
an ongoing relationship
between the PSA and the College. In law and
fairness, I do not consider a costs award to be appropriate.
Order
[22]
I therefore make the following order:
22.1
The arbitration award of 16 July 2015 under
case number GPBC 2591/2014 is reviewed and set aside.
22.2
The dispute is remitted to the General
Public Service Sectoral Bargaining Council (first respondent) for a
fresh arbitration before
an arbitrator other than the second
respondent.
22.3
There is no order as to costs.
_______________________
Anton
Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
Grant Quixley
Instructed
by
Cliffe Dekker Hofmeyr.
THIRD
to THIRTEENTH RESPONDENTS:
Mr Philander
(Heads
of argument drafted by Grant Potgieter)
Instructed
by
Duncan Korabie.
[1]
Labour Relations Act 66 of 1995
.
[2]
There appeared to have been no irony attached to the date.
[3]
Sidumo
v Rustenburg Platinum Mines Ltd
2008
(2) SA 24
(CC) para [110].
[4]
Herholdt
v Nedbank Ltd
2013
(6) SA 224
(SCA) para [25].
[5]
Head of
the Department of Education v Mofokeng
[2015]
1 BLLR 50
(LAC); (2015) 36
ILJ
2802 (LAC) para [30].
[6]
Natal
Joint Municipal Pension Fund v Ndumeni Municipality
2012
(4) SA 593
(SCA) para [18].
[7]
KPMG v
Securefin Ltd
2009
(4) SA 399
(SCA) para [39]. See also
Dexgroup
(Pty) Ltd v Trustco Group International (Pty) Ltd
2013
(6) SA 520
(SCA) and
Western
Cape Dept of Health v Van Wyk
[2014]
ZALAC 25
para [22].
[8]
[8]
Above para [18], quoted in para 19 of the arbitration award.